The Board of Professional Responsibility (BPR) and the Bar Counsel Review and Oversight Committee (ROC), in collaboration with the Office of Bar Counsel have proposed changes to the Wyoming Rules of Disciplinary Procedure (WRDP) in the areas of confidentiality of attorney disciplinary proceedings and the composition of hearing panels of the Board of Professional Responsibility. Member of the Wyoming State Bar are invited to comment upon the proposed changes (attached).
The proposed WRDP amendments include:
- A change to Rule 3, the confidentiality rule, to make documents on file with the BPR clerk available to the public from the time a formal charge is filed. In 2014, a rule change was proposed by the BPR and approved by the Board of Officers & Commissioners that would make the lawyer discipline process a little more transparent, making such matters public from the time a formal disciplinary charge is filed by Bar Counsel—a rarity, as complaints that result in discipline are typically resolved by stipulation without a formal charge ever being filed. In its 2015 order adopting rewritten rules of procedure for lawyer discipline, the Wyoming Supreme Court proclaimed, “The Court determined that the proposed rule to make disciplinary proceedings public upon the filing of a formal charge required further study and did not adopt proposed rules pertaining to that issue. The Court concluded that the remaining proposed rules, with minor revisions, should be adopted.” This decision by the Court kept Wyoming from being added to the list of 42 states that make lawyer discipline proceedings public at the formal charge stage, if not before.
Not surprisingly, the shroud of secrecy that continues to surround lawyer (as well as judicial) discipline in Wyoming yields some undesirable consequences. With members of the public, it perpetuates the image that rather than being a self-regulating profession, the legal community in this state is self-protective. With lawyers, there is often grumbling that the discipline system is not working when months pass after a well-publicized incident of lawyer misconduct with no apparent action by the Bar or the Court. It is not unusual for Bar Counsel to receive a call or an email asking why nothing has been done about such a lawyer. Unfortunately, Bar Counsel is constrained from telling the caller that the case is working its way through the disciplinary system.
For cases that proceed to a hearing before the BPR—something that happens a few times each year—the average period between Bar Counsel’s receipt of the grievance and issuance of a disciplinary order by the Court is 16 months. If the respondent or Bar Counsel appeals the BPR’s recommended discipline, the case will often be extended past the two-year mark. During this entire time, the public is in the dark as to whether the Bar is doing anything about a lawyer whose is misconduct may have been a matter of public awareness for quite some time.
Formal charges are a rarity. In a typical year, four to six formal charges are filed. Before a formal charge is filed, the ROC must review the file and make an independent determination that there is clear and convincing evidence of professional misconduct by the lawyer. It is only after the ROC has issued a finding of probable cause that the formal charge is filed.
Were Wyoming to join the majority of jurisdictions that makes disciplinary proceedings public upon the filing of a formal charge, it would mean that in the few cases each year that get that far, the formal charge and subsequent pleadings would be available upon request. The 42 states which have adopted this policy report that such requests are rare, usually confined to high-profile cases that attracted media attention long before disciplinary charges were filed.
In the collective judgment of the BPR and the ROC, this is an appropriate time to approach the Court again about the confidentiality rule change the Court rejected in 2015.
- A change to Rule 6 regarding the composition of the Board of Professional Responsibility, expanding the size of the Board from 7 members (currently, 5 lawyers and 2 non-lawyers) to 9 members (6 lawyers and 3 non-lawyers).This change will enable hearing panels (consisting of 2 lawyers and 1 non-lawyer) to be drawn from the Board, which will facilitate scheduling and will make the process less expensive for lawyers, who are required by rule to reimburse the Bar for BPR travel expenses.The change will also make it possible for stipulated discipline proposals to be considered and decided by a 3-person review panel whose members will not be on the hearing panel for the case. That way, if the stipulated discipline is rejected by the review panel, the matter can proceed to hearing before a hearing panel that is unaware of the stipulated discipline proposal – something akin to keeping evidence of settlement negotiations from the jury.
- The changes to Rule 6 necessitate comparable changes to certain provisions of Rules 12, 15, 16, 19, 20 and 22.
At its January 11, 2019, meeting, the Board of Officers & Commissioners approved putting the proposed rule amendments out for comment by the members. Comments should be sent to Mark Gifford, Bar Counsel, at firstname.lastname@example.org. Comments will be accepted until March 15, 2019.
CLICK HERE to download the proposed amendments.